t is unfortunate," Justice Anthony Kennedy lamented yesterday, "that our legislators have reached the point of declaring that, when it comes to apportionment, `We are in the business of rigging elections.' " Despite that trenchant analysis of the state of our democracy, Justice Kennedy joined four of his colleagues in rejecting a challenge to Pennsylvania's thoroughly biased Congressional redistricting plan. Yesterday's 5-to-4 ruling was an enormous missed opportunity, one we can only hope the court revisits another day. Until it does, the public must challenge the growing trend of treating reapportionment as an opportunity to rig elections.

Partisan gerrymandering, drawing district lines to favor one political party, has reached a crisis point. Because of increased partisanship and improvements in the technology used to determine district lines, legislators now regularly create districts that all but ensure victory for the party that controls the redistricting process. In Pennsylvania, Republicans drew preposterously shaped districts — one is known as the "supine sea horse" — that distort the state's political preferences. Although a majority of the state's voters are registered Democrats, the district lines produced a Congressional delegation of 12 Republicans and 7 Democrats. Partisan gerrymandering does not merely distort voting; it makes it largely irrelevant. Only about one in 12 House elections in 2002 was decided by no more than 10 percentage points, and nearly 20 percent were essentially uncontested.

In yesterday's decision, the court rejected a constitutional challenge to the Pennsylvania district lines. Antonin Scalia, writing for four justices, made much of how hard it would be to come up with a workable standard to apply in gerrymandering cases. But that is an objection judges often make when they do not want to do something. In cases involving states' rights, which these same justices feel passionately about, they have been happy to apply tests that are almost incomprehensible. The dissents offer several possible approaches, any of which would do nicely.

The ruling is equivocal because of Justice Kennedy's ambivalent opinion. He joined the plurality in upholding the Pennsylvania districts. But he declined to join the other four in reversing a previous decision that said partisan gerrymandering could be legally challenged. His opinion, which suggests some possible approaches for future cases, leaves the door open, though it is unclear how open.

The best hope for democracy is for a future court, perhaps with different membership, to reconsider this issue. Until then, voters should start demanding district lines that produce real elections. Iowa, which has long had a nonpartisan redistricting commission, is a worthy model for other states. Politicians from both parties bemoan the increased partisanship in politics today. They can show that they mean it, and that they value the role of voters in this democracy, by putting nonpartisan redistricting in place before the 2010 census.

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